A Horrific Crime

But Is Execution the Answer?

Cathleen Kaveny December 13, 2010 - 9:34am

After deliberating for four days last month, a Connecticut jury imposed the death penalty on Steven Hayes, one of two men charged with three horrific murders during a home invasion in July 2007. Joshua Komisarjevsky, his alleged accomplice, will be tried separately next spring.

When I heard the verdict, I experienced an immediate sense of relief. Since then I have been struggling to reconcile my initial reaction with my moral opposition to the death penalty.

Hayes and Komisarjevsky broke into the suburban home of the Petit family in the dead of the night, beat the father senseless with a baseball bat, raped the mother, and terrorized the two daughters, one seventeen years old and the other just eleven. The little girl was also raped. When morning came, the two men forced the mother to withdraw fifteen thousand dollars from the bank, promising to release the family if she complied with their demands. Despite the fact that she managed to alert the authorities, help came too late. She was murdered within an hour of the timestamp marking her appearance on the grainy footage from the bank camera. Most horrible of all was the fate of the two girls. They were tied to their beds and doused with accelerant, left to burn alive after the criminals set the house ablaze. Only the smallest of cosmic mercies permitted the daughters to die of smoke inhalation before the flames reached their bodies.

As the saying goes, hard cases make bad law. This case is not representative of the death-row docket. For example, the state of Virginia recently executed a mentally handicapped woman. Moreover, there is a good deal of evidence suggesting that the practice of capital punishment is racist. The penalty is far more likely to be imposed in the case of a black perpetrator, especially if his victim is white. Finally, as improvements in DNA technology have demonstrated, many innocent persons have spent time on death row. Doubtless some have been executed for a crime they didn’t commit.

Nonetheless, hard cases keep ethical reflection honest. They press us to clarify just why we hold the positions we hold. By making us uncomfortable, they also make us think. Here’s what this case brought to my mind.

It’s not enough to oppose the death penalty. As John Paul II acknowledged in Evangelium vitae[1], we also have to ensure that the appropriate structures are in place to keep dangerous men and women from harming others. Both Hayes and Komisarjevsky committed this crime while on parole. Furthermore, parole board members approved Komisarjevsky’s early release without reviewing records that included a judge’s description of him as a “cold, calculating predator.” Many Catholics, on both the left and the right, emphasize that building a culture of life requires not merely banning abortion but also putting in place social structures that reduce the demand for it. We need to acknowledge that the same goes for capital punishment.

Two traditional goals of punishment are retribution and deterrence. But the evildoing in this case calls both those goals into question. From the perspective of the lex talionis, a quick, painless execution would be far too lenient a punishment. Moreover, once a certain threshold of brutality has been crossed, the death penalty ceases to function as a deterrent: after they had raped and killed the mother, what more did the defendants have to lose? They could only be executed once.

The hard fact is that society cannot impose a condign punishment, or an effective deterrent to these monstrous acts, without in some sense recreating and participating in the brutality of the criminals themselves. And viewed more broadly, that fact suggests how we should think about the death penalty. We need to ask not what it does to the criminals, but what it does to us as a society. The execution is a separate event from the crime. At the moment of execution, a criminal is helpless before the power of the state. We strap him to a gurney and snuff out his life. Can a society engage in this ritual while meaningfully advancing a commitment to the unconditional dignity of every human being?

The best argument in favor of capital punishment is that it irrevocably separates criminals from the society they have betrayed. A quick, painless execution may not serve retribution, but it effectively dispatches evildoers from our midst. Aquinas memorably analogized a criminal to a gangrenous limb that needs to be cut off for the sake of the body politic.

The difficulty with this argument, however, is that it fails to face the terrifying fact that these evildoers are part of our society. In fact, Komisarjevsky grew up in a wealthy family and had lived near the victims. What prompted him to go so wrong? Nature or nurture? Was there anything that could have been done to correct his course? Executing Komisarjevsky would only allow us to avoid these important questions.

How can people do such things to one another? I finally realized that this case haunts me not because of the problem of capital punishment but because of the problem of evil itself.